“War”: Constitutional Meaning

“War”: Constitutional Meaning

“War” The Constitutional Meaning

The “war on terrorism” is fundamentally a misnomer, because “War” is a constitutional term of art; and “the war on terrorism” has not been, and due to the diffuse nature of the enemy and undefinable character of the conflict cannot be “declare[d]” as the Constitution prescribes. (footnote 1) Constitutionally speaking, “War” is a specific set of legal relations between two or more independent nations. For the most obvious example, in an actual “War” soldiers in one nation may, within certain limits, intentionally kill soldiers of another nation without thereby being guilty of murder under the law of any nation. According to strict constitutional logic, then, a “war on terrorism” is an existential impossibility—if only because “terrorism” is a set of typically para-military tactics, not a country or even a political ideology; and because terrorists do not constitute one or more independent nations, but outside the context of international war, are at most mere bands of private criminals. (footnote 2)

Not surprisingly, Congress has never attempted to exercise its constitutional power “[t]o declare War” (footnote 3) to declare a general “war on terrorism”—because even contemporary Congressman instinctively realize that such a putative declaration would be constitutionally impossible. To be sure, if Congress could satisfactorily delimit the particulars of “international terrorism”, it could outlaw such crime pursuant to its power “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations”. (footnote 4) But that power is constitutionally separate and distinct from, and independent of, the Congressional power “[t]o declare War”.

Sir William Blackstone was America’s Founding Fathers’ preeminent mentor on the pre-constitutional laws of England (footnote 5), Rather than give his own idiosyncratic notion of “War”, Blackstone’s understanding had long been commonplace among exposition of the Law of nations. (footnote 6)

Sir William Blackstone, the Founding Fathers’ legal mentor explained the legal meaning of ‘War’ in his ‘Commentaries on the Laws of England’.

Sir William Blackstone, renowned author of the Commentaries on the Laws of England, was the Founding Fathers’ preeminent legal mentor. “At the time of the adoption of the Federal Constitution [the Commentaries] had been published about twenty years, and it has been said that more copies of the work had been sold in this country than in England, so that undoubtedly the Framers of the Constitution were familiar with it.” (footnote 1)

Whether attended with the trappings of legal formality or not, all of the manifestations of “War” involve at least one other nation as an antagonist. “War” cannot be waged, or even “declare[d]”, against private parties (a “war on crime”), against things (a “war on drugs”), against tactics (a “war on terrorism”), against personal habits (a “war on smoking”), against personal characteristics (a “war on obesity”), or even against private parties committing serial crimes by means of “terrorism”. Such was the understanding of the term “War” during the pre- constitutional era—and “[w]e are bound to interpret the Constitution in the light of the law as it existed at the time it was adopted”. (footnote 2) As Blackstone explained,

“It is held by all the writers of the laws of nature and nations, that the right of making war, which by nature subsisted in every individual is given up by all private persons who enter into society, and is vested in the sovereign power: and this right is given up, not only by individuals, but even by the intire body of people, that are under the dominion of the sovereign. It would indeed be extremely improper, that any number of subjects should have the power of binding the supreme magistrate, and putting him against his will in a state of war. Whenever hostilities therefore may be commenced by private citizens, the state not ought to be affected thereby: unless that should justify their proceedings, and thereby become partner in the guilt. Such unauthorized volunteers in violence are not ranked among the enemies, but are treated like pirates and robbers[.]” (footnote 3)

[And] the crime of piracy, or robbery and depredation upon the high seas, is an offence against the universal law of society * * * [being] among the principal cases, in which the statute law of England interposes, to aid and enforce the law of nations, as a part of the common law; by inflicting an adequate punishment upon offenses against that universal law, committed by private persons. (footnote 4)

The power to “declare War” was not delegated to Congress for purposes of personal aggression or aggrandizement. Along with the power to wage “War”, WE THE PEOPLE require a formal declaration of “War” as a “check and balance” against Congress itself, prohibiting our “representatives” from waging “War” which they cannot “declare”. The United Sates has not “declare[d] War” since World War II.

To circumvent constitutional disabilities imposed upon them and claim more unconstitutional powers, government officials invented “the war on terror”.

6.) See, e.g., Hugo Grotius, The law of War and Peace [De Jure Belli ac Pacis Libri Tres (1646)] (Indianapolis, Indiana: The Bobbs-Merill Company; Reprint from The Classics of International Law, by the Carnegie Endowment for International Peace, 1925), Book III, Chapter III §§ I and II, at 630-632. The Founding Fathers were well aware of Grotius’s work. See e.g., The Federalist No. 84 note [4].